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What is a motion hearing in a DUI case?

What is a motion hearing in a DUI case?

A great deal of the anxiety associated with motions is derived from a failure to define the purpose of the hearing. I pursue motions in nearly every case that I have. It takes time, effort, and a willingness to tolerate deriding comments from prosecutors and eye-rolling from some judges. On the basis of the very minimal discovery that we receive in DUI cases, I very frequently do not have a well-founded basis to believe that the trial court will grant my probable cause motion, but I pursue those motions the vast majority of the time. So, short of being a glutton for punishment, I recognize that I must have some alternative motivation.

There are 5 basic purposes of motions: 

  • Exclusion of unfavorable evidence;[1]
  • Trial preparation;
  • Improving the plea offer;
  • Diversion; and
  • Dismissal of the charges.

Exclusion of Unfavorable Evidence       

         Criminal defense lawyers laugh all of the time about filing “Motions to Change the Facts.” Often, we recognize that there are some facts that, if introduced to the jury, will create a problem for the most well-presented defense. Larry Pozner and Roger Dodd have referred to these as facts beyond change. “Facts beyond change are facts that will be believed by the jury as fair, accurate, and highly relevant regardless of best efforts to dispute or modify them.”[2]

A motion to suppress or motion in limine is your opportunity to change the facts of the case.

A motion to suppress evidence [or motion in limine] is a motion to delete certain facts beyond change. To the extent that a motion to suppress evidence [or motion in limine] succeeds in a whole or in part, these facts beyond change disappear from the lawsuit. Since the suppressed facts are never available to the fact finder, they cannot be facts in dispute. They cannot be facts of the lawsuit. They cannot be facts beyond change.[3]

For example, in a DUI-refusal case, if your client makes a statement after arrest that he “should not have been driving.” You unquestionably want to attack the admissibility of this statement. If the statement is admitted during the course of the trial, it is highly likely that the jury will treat this statement as an admission that your client was “less safe” to drive.

Creating a Trial Advantage and Improving the Plea Offer

If success at a motion to suppress is defined in terms of having the motion granted, success is seldom achieved. The most common use of motions to suppress is to develop a trial advantage and, consequently, improve the plea offer.

We develop a trial advantage by demonstrating to the prosecutor various problems with their case. For example, let us look at a case in which the arrest report described a defendant as “faking” when attempting to blow into the breath testing machine. However, the discovery showed that our client submitted “sufficient” samples, but the first sample produced an “invalid sample” result at 12:03 a.m. The officer subsequently tested our client at 12:08 a.m. and 12:11 a.m., which produced results of .099 and .110. The performance of the defendant's breath test directly violates the 20 minute waiting period. However, these results are admissible in Georgia.[4] Use the motions hearing as an opportunity to have the officer tell the prosecutor that he failed to adhere to his training in the administration of the breath test and he incorrectly recorded the evidence in his incident report.

Cases improve during the course of live testimony. During motion hearings, issues are developed and some just arise which were previously unknown. Cases that seem hopeless develop hope. Be rigorous in your preparation, and you will uncover favorable evidence. When you develop favorable evidence, plea offers improve (i.e., the DUI is frequently dismissed or “reduced”).

Even in a motion hearing where the evidence does not change substantially during the hearing, you have an opportunity to lock the officer into his testimony. You have an opportunity to observe the officer's testimony and to observe his demeanor. Learning how the officer addresses difficult issues prior to the trial can be the difference between winning and losing at trial.

There is one final note on the use of motions to prepare for trial: have the motions taken down and transcribed. See, Rule 11 of the Dirty Dozen Rules (below). Having a transcript to prepare from for trial is invaluable.        

Use of a Motion Hearing as a Diversion

Officers remember those of us who rigorously cross-examine them. Have you ever had an officer who knew nothing about the administration of the horizontal gaze nystagmus test during a motion hearing, testify as if he was an expert on the horizontal gaze nystagmus test during trial? No, most officers do not undergo a SFST refresher course immediately prior to a trial. Instead, officers (and prosecutors) remember the painful attack that they underwent at a motion hearing and they prepare accordingly. Frequently, this results in what appears to be a contrived over-emphasis. You can use their preparation to your advantage over the course of the trial. 

Perhaps you observe an officer performing a phase of the HGN test too slowly. You recognize the problem, but you also recognize that your trial judge will not likely exclude this evidence based on Tousley or Sultan. Rigorous cross-examination of the officer at the motion on the importance of strict compliance with the NHTSA protocol for the administration of the HGN test can cause the prosecution to over-emphasize the deviation from the guidelines in the course of the trial. You can then change your attack on the HGN from administration to a “So what?” approach.[5]          

Dismissal of the Charges

Other than demurrers, a motion to suppress remains the only tool available to Georgia criminal defendants to attack the ability of the state to proceed to trial. Unless otherwise agreed to by the parties, in Georgia, the criminal defendant cannot avail himself of what is known as a “motion for summary judgment.” Ewell v. State, 245 Ga. App. 610, 538 S.E.2d 523 (2000); Schuman v. State, 264 Ga. 526, 448 S.E.2d 694 (1994); Jackson v. State, 208 Ga. App. 391, 392, 430 S.E.2d 781 (1993). However, a motion to suppress provides us with the ability to force the state to produce a threshhold level of evidence prior to trial.

[1] While it is outside of the scope of this paper, motions in limine may also be used to ensure that items of questionable admissibility are ruled on prior to trial. If you have prejudicial or character evidence which you fear the court may refuse to admit during the course of trial, consider addressing the issue at a pre-trial hearing.

[2] Larry S. Pozner and Roger J. Dodd, Cross Examination: Science and Techniques, § 2.20 (2nd Ed.).

[3] Id., at § 2.44.

[4] See, State v. Palmaka, 266 Ga. App. 595, 596, 597 S.E.2d 630 (2004)(“Any deviation from the operator's manual goes to the weight to be given the test results and not to their admissibility.”).

[5] See, Bruce Kapsack, Innovative DUI Trial Skills, § 3.22.

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